Horvath v. Banco Comercial Portugues, S.A., Millennium Bcpbank, N.A.
461 F. App'x 61
2d Cir.2012Background
- Horvath opened a Portuguese investment account with BCP; the opening agreement states General Terms and Conditions govern the account.
- General Terms and Conditions contain a mandatory forum clause: Courts of Lisbon or Oporto have exclusive jurisdiction.
- Horvath signed a Client Statement acknowledging knowledge of and agreement to the General Terms and Conditions.
- Millennium BCPBANK, N.A. is a defendant and a non-signatory to the contract governing the account.
- Horvath asserts claims against both BCP and Millennium seeking relief for alleged misrepresentations in investments.
- The district court granted a Rule 12(b)(3) motion to dismiss based on the forum clause; Horvath appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forum selection clause is enforceable against Horvath | Horvath argues the clause was not reasonably communicated or enforceable | Defendants contend the clause is mandatory and controlling over all related claims | Enforceable against all claims arising from the agreement |
| Whether Millennium, a non-signatory, is bound by the forum clause | Claims against Millennium should not be bound since it is not a signatory | Millennium contributed to the same transaction and consented to Portugal jurisdiction | Bound under derivative/closely related theory |
| Whether Horvath’s claims arise out of the General Terms and Conditions | Claims stem from misrepresentations in investments under the account terms | Claims arise from the same contract governing the account | Yes; all claims arise out of the General Terms and Conditions |
| Whether enforcing the forum clause would be unjust under the circumstances | Portugal is inconvenient and Horvath cannot pursue a remedy in the chosen forum | Horvath had opportunity to litigate in Portugal and is properly protected | Not unjust; forum selection clause enforceable |
| Whether the district court abused its discretion in denying leave to amend | Horvath sought leave to amend at the end of opposition brief without justification | Abuse not shown; amendment not warranted by the record | No abuse of discretion; denial affirmed |
Key Cases Cited
- Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) (four-part forum selection test; de novo review on contract interpretation)
- AXA Versicherung AG v. N.H. Ins. Co., 391 F. App’x 25 (2d Cir. 2010) (signer bound by documents knowingly incorporated into agreements)
- PaineWebber Inc. v. Bybyk, 81 F.3d 1193 (2d Cir. 1996) (documents incorporated by reference bind signatories)